Domestic Violence Stalking
Stalking rarely looks like a stranger lurking in the bushes outside a person’s window. More often, it’s raised in the context of domestic violence with warring spouses, ex-boyfriends or girlfriends, or co-parents taking their ire a step too far.
Domestic violence stalking as outlined in F.S. 784.048 is when someone willfully, maliciously, and repeatedly follows, harasses, or cybertalks another person. “Harassment” is defined here as a course of conduct (a period over a pattern of time) aimed specifically at a certain individual which results in substantial emotional distress to the target and serves no other legitimate purpose.
Cyberstalking is basically just stalking by way of computers and other electronic communication devices. With near-universal reliance on technology in most every aspect of our modern daily lives, cyberstalking has become one of the most commonly-filed forms of this charge. (There’s also sexual cyber harassment under a different portion of the statute. This is more colloquially known as “revenge porn,” and it can be charged either as a misdemeanor or felony, depending on the specifics.)
When stalking involves family members, household members, co-parents, or an intimate partner, it’s domestic violence stalking.Defense Hurdles in Florida Domestic Violence Stalking Cases
Our Fort Lauderdale defense lawyers have seen stalking allegations get tossed around in situations where an emotional ex sends a few too many angry texts or voicemails, fires off a couple particularly nasty emails, or repeatedly sends unwanted gifts or notes - mistakenly thinking it will help facilitate forgiveness and amends.
In messy breakups, it’s not uncommon for people to lash out, say hurtful or aggressive things they don’t actually mean, or take too long to recognize the relationship is well and truly over. It crosses the boundary into potential criminal conduct when there’s a pattern, it causes the other person great emotional distress, and it doesn’t serve any legitimate purpose. Some of these elements are subjective, which is why having a strong legal advocate in your corner is so important.
Know that temporary protection orders and permanent injunctions are not uncommon in domestic violence stalking cases, particularly if there is a conviction.
If your intent truly was not willful, malicious, and repeated, your defense attorney should be able to argue for an outcome in your favor. However, we can’t gloss over the fact that there has been heightened societal pressure in recent years for state attorney’s offices and judges to treat these cases with a heavy hand.
Even if the accuser recants and refuses to cooperate, Florida courts have made it common practice in domestic violence cases to be more broadly permissible with hearsay evidence exceptions. This allows prosecutors to proceed with their case even if the alleged victim is no longer cooperating. What’s more, the paper trail (or more commonly, the electronic trail) typically generated in stalking cases can make it difficult to dispute the nature, severity, and frequency of certain communications. State attorneys have also have gotten increasingly more adept at utilizing advances in tech cell phone tracking and electronic purchase records in building their cases.Possible Defenses in Florida Domestic Violence Stalking Cases
Given the fact that a domestic violence stalking conviction will have you not only facing jail time but also a permanent tarnish on your reputation - forever reflected in public records - it’s not the sort of case you want to leave to chance. Seeking out a defense attorney with a history of success in this particular kind of case is your best shot at clearing your name - or at least minimizing the consequences.
In addition to defense tactics that involve typical requests such as suppression of ill-gained or irrelevant evidence, domestic violence stalking defense lawyers might also try arguing:
- Legitimate purpose. If the communication at issue regarded the furtherance of a legitimate purpose (child custody matters, business, legal issues, etc.), then the communication might presumptively be legitimate - in which case, a stalking charge would not be appropriate.
- First Amendment Activity. Constitutionally-protected activity or communication, such as organized protesting or picketing, cannot be considered stalking. (For example, if a group is picketing outside an abortion clinic, they might be accused of stalking or harassment. Their defense lawyer might argue their activity is protected free speech.)
- No pattern of activity. To meet the proof burden for a stalking charge, prosecutors must show the defendant engaged in the activity “repeatedly,” establishing a pattern. The state requires two or more incidents to establish stalking. Depending on the circumstances, a one-time communication might be legitimately construed as a threat (as outlined in F.S. 836.10), but it’s not stalking.
- No evidence of emotional distress. Substantial emotional distress of the alleged victim is key to conviction for stalking. As we saw in the 2017 case of Ashford-Cooper v. Ruff before Florida’s 1st District Court of Appeal, cases have been outright dismissed when the prosecution fails to prove this element. Here, an injunction was entered against a woman at the request of her husband’s girlfriend for stalking. But the appellate court reversed, finding no proof that the repeated calls and texts resulted in great emotional distress to either the girlfriend or the husband.
If you’ve been accused of domestic violence stalking in Florida, our experienced Fort Lauderdale defense lawyers can review your case, identify potential outcomes, and formulate effective defense strategies as your case makes its way through the criminal justice system.
If you have been charged with Domestic Stalking, call the South Florida criminal defense lawyers at The Ansara Law Firm at (954) 761-4011 for quality legal representation.